Ezeani v. Carillo

Appellate Case: 23-2104     Document: 010110989810      Date Filed: 01/25/2024      Page: 1
                                                                                 FILED
                                                                     United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                        Tenth Circuit

                              FOR THE TENTH CIRCUIT                       January 25, 2024
                          _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
  GREGORY IFESINACHI EZEANI,

        Plaintiff - Appellant,

  v.                                                         No. 23-2104
                                                (D.C. No. 2:23-CV-00325-MIS-DLM)
  DR. LUIS RODOLFO GARCIA                                     (D. N.M.)
  CARILLO; DR. DAVID V. JAUREGUI;
  DR. PHAME CAMARENA,

        Defendants - Appellees.
                       _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

 Before BACHARACH, KELLY, and LUCERO, Circuit Judges.
                  _________________________________


       Gregory Ifesinachi Ezeani, pro se, appeals the district court’s order dismissing

 his amended complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

 claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




       *
         After examining the briefs and appellate record, this panel has determined
 unanimously that oral argument would not materially assist in the determination of
 this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
 ordered submitted without oral argument. This order and judgment is not binding
 precedent, except under the doctrines of law of the case, res judicata, and collateral
 estoppel. It may be cited, however, for its persuasive value consistent with
 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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                                            I

       Ezeani, a former student at New Mexico State University (NMSU), filed suit

 under 42 U.S.C. §1983 for the alleged violation of his civil rights. A magistrate

 judge granted his motion to proceed without prepayment of fees (IFP). After

 screening the complaint, the magistrate judge determined that it failed to state

 plausible claims for relief and directed Ezeani to file an amended complaint.

       In his amended complaint, Ezeani alleged that NMSU Assistant Professor Luis

 Rodolfo Garcia Carrillo “failed to provide academic supplies, refuse[d] to provide

 distribution of mark of his project grades for proper transparency and . . . penalized

 [him] for not using suppl[ies] that he did not provide.” R., vol. 1 at 146. According

 to Ezeani, Professor Carrillo “violated NMSU Rule[s] 4.41, 5.40 & 3.00.” Id.

       For his claims against David V. Jauregui, NMSU’s Associate Dean of

 Academics, and Phame Camarena, its Interim Dean of Graduate Studies, Ezeani

 alleged that “Dr. Jauregui on appeal did not follow the University rule in his

 decision,” and “Dr. [Camarena] on final appeal refuse[d] to follow NMSU rule in

 making final decision.” Id.

       Ezeani alleged violations of his (1) “[F]ifth [A]mendment . . . right to due

 process to NMSU law determination,” (2) “[E]ight[h] [A]mendment . . . right to

 NMSU Rule,” and (3) “14th [A]mendment . . . right to NMSU Rule.” Id. at 145.

 As relief, he sought (1) $20,000 in compensatory damages, id. at 146; (2) damages

 for “emotional pain and suffering” from being “subjected to unlawful academic



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 probation,” id. at 147; and (3) an order deleting “the F grade given” by Dr. Carrillo,

 id. at 146.

        In its memorandum opinion and order dismissing the amended complaint, the

 district court determined that Ezeani “fails to state a due process claim because [he]

 does not identify a protected property interest to which due process protections

 apply.” Id. at 151. Specifically, “[t]here are no factual allegations that [his] class

 grade is a protected property interest, [or] that [he] has a protected property interest

 in remaining off academic probation.” Id. Also, the amended complaint fails to

 “describe the criteria for placing students on academic probation or the consequences

 of being placed on academic probation.” Id.

        Further, the court explained that the amended complaint “does not contain

 [any] factual allegations describing the process due to [Ezeani] and showing [that he]

 was not afforded the process due.” Id. To the contrary, “[t]he Amended Complaint

 [contains only] conclusory allegations that Defendants violated or did not follow

 NMSU rules but does not contain factual allegations regarding what those rules

 require and how Defendants violated those rules.” Id. “[B]ecause the Amended

 Complaint does not describe the rule(s) that Defendants allegedly did not follow or

 the appeal process that Defendants provided, the Amended Complaint fails to allege

 sufficient facts showing that Defendants did not provide an appropriate level of

 process during [Ezeani’s] appeal.” Id. at 152.

        The court also determined that Ezeani’s Eighth Amendment claim failed

 because “[t]he Eighth Amendment, which prohibits the infliction of cruel and unusual

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 punishments, applies to those who have been convicted of crime [and] [t]here are no

 factual allegations in the Amended Complaint that [Ezeani] was convicted of a

 crime.” Id. (internal quotation marks omitted).

                                              II

        Any complaint filed pursuant to the IFP provisions of § 1915(a) is subject to

 sua sponte dismissal if the court determines that complaint “fails to state a claim

 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “[W]e review

 de novo a district court’s sua sponte dismissal pursuant to . . . § 1915(e)(2) in

 an [IFP] proceeding.” Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir.

 2009). In doing so, “[w]e apply the same standard of review for dismissals under

 § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6)

 motions to dismiss for failure to state a claim.” Kay v. Bemis, 500 F.3d 1214, 1217

 (10th Cir. 2007).

        “To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege facts

 that, if true, ‘state a claim to relief that is plausible on its face.’” Clinton v. Sec.

 Benefit Life Ins. Co., 63 F.4th 1264, 1274 (10th Cir. 2023) (quoting Ashcroft v.

 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

 570 (2007)). “[W]hen Iqbal speaks of a claim’s facial plausibility, the complaint

 must plead factual content that allows the court to draw the reasonable inference that

 the defendant is liable for the misconduct alleged.” Id. at 1275 (internal quotation

 marks omitted).



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        “In reviewing an order granting a motion to dismiss, our role is like the district

 court’s: we accept the well-pleaded facts alleged as true and view them in the light

 most favorable to the plaintiff, but need not accept threadbare recitals of the elements

 of a cause of action that are supported by mere conclusory statements.” Id. (citation,

 brackets and internal quotation marks omitted). “An allegation is conclusory where

 it states an inference without stating underlying facts or is devoid of any factual

 enhancement.” Id. (internal quotation marks omitted).

        “Because [Ezeani] [appears] pro se, we liberally construe his filings, but we

 will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

 “Although we construe a pro se plaintiff’s complaint broadly, the plaintiff still has

 the burden of alleging sufficient facts on which a recognized legal claim could be

 based.” Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (internal quotation

 marks omitted).

                                              III

        In his opening brief, Ezeani lists several reasons why the district court’s

 decision was wrong. For example, he argues that his class grade is a protected

 property interest that warrants due process protections because it “results from effort

 owned and resource invested by the student.” Aplt. Opening Br. at 8. Next, he

 maintains that because the court did not issue summonses to defendants, “it is the

 duty of the court to show beyond reasonable doubt that evidence provided by the

 plaintiff lacks merit or [that] it is . . . false evidence before dismissal.” Id. at 9.

 Similarly, he argues that his failure to describe the NMSU rules that defendants

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 allegedly failed to follow, the appeal process, or the process that was provided must

 be overlooked “because the court [did] not refute[] that the evidence provided by the

 plaintiff was faulty or false.” Id. at 10. As to the alleged Eighth Amendment

 violation, he contends that “stopping the plaintiff from graduation and placing him

 on] academic probation . . . is as good as [a] crim[inal] conviction because [un]usual

 punishment exist[s] in both circumstances.” Id. at 11.

        But Ezeani fails to address the relevant question: whether the amended

 complaint stated plausible claims for relief. Instead, as an overarching argument, he

 maintains that any consideration of whether the amended complaint stated plausible

 claims for relief was premature because “[t]he [district] court lacks jurisdiction to

 determine final insufficiency without issuing a summons to the defendant to

 determine sufficiency or non-sufficiency in a federal civil procedure method of

 investigation.” Id. at 12. He also faults the district court for “fail[ing] to investigate”

 his case before dismissing it. Id. at 11.

        Ezeani does not support any of his arguments with legal authority. Therefore,

 we decline to consider them. See Fed. R. App. P. 28(a)(8)(A) (among other things,

 “[t]he appellant’s brief must contain . . . the argument, which [in turn] must contain[]

 appellant’s contentions and the reasons for them, with citations to the authorities . . .

 on which the appellant relies”); Garrett v. Selby Connor Maddux & Janer, 425 F.3d

 836, 840-41 (10th Cir. 2005) (holding that a pro se litigant must comply with

 Rule 28, including providing legal authority for his arguments); Phillips v. Calhoun,

 956 F.2d 949, 953-54 (10th Cir. 1992) (declining to consider an issue, in part,

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 because appellant’s position not even minimally supported by legal argument or

 authority).1

                                            IV

        The judgment of the district court is affirmed.


                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




        1
          The only legal authority cited by Ezeani is Conley v. Gibson, 355 U.S. 41,
 45-46 (1957), which held that “a complaint should not be dismissed for failure to
 state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts
 in support of his claim which would entitle him to relief.” See Aplt. Opening Br.
 at 13. However, the Conley standard is no longer good law; rather, the “beyond
 doubt” standard was abrogated and replaced with the plausibility standard in Bell
 Atlantic Corp. v. Twombly, 550 U.S. 544, 560-63 (2007).

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